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43 Senators Tell Court Obama Trying to Change Law ‘by Extra-Constitutional Assertion’ of Power

Terence P. Jeffrey
By Terence P. Jeffrey | April 4, 2016 | 5:43 PM EDT

(AP Photo/J. Scott Applewhite)

Forty-three U.S. senators presented a brief to the U.S. Supreme Court today arguing that President Barack Obama is seeking to “implement his policy preferences” in dealing with certain classes of illegal aliens “by the extra-constitutional assertion of a unilateral executive power.”

“With millions of illegal aliens not permitted to remain in this country, work in this country, or receive government benefits pursuant to federal law, the Executive decided to provide such privileges to them anyway through administrative fiat,” says the brief.

The brief was filed in the case of United States v. Texas, which pits Texas and numerous other states against the Obama administration on the legality and constitutionality of the administration’s policy called the Deferred Action for Parents of Americans and Lawful Permanent Residents. The brief was presented by Senate Majority Leader Mitch McConnell and 42 other senators.

In their own petition to the court, the attorney general and solicitor general of Texas summarized their state’s case against the administration.

“The Executive Branch unilaterally created a program—known as DAPA—that will grant ‘lawful presence’ and eligibility for work permits to over four million aliens who are present in this country unlawfully,” said Texas’s petition.

“‘Lawful presence,’ an immigration classification established by Congress, allows aliens to receive numerous benefits—such as Medicare, Social Security, the Earned Income Tax Credit, and unemployment insurance,” the Texas brief explained. “And Congress has created a detailed, complex statutory scheme for determining when an alien may lawfully enter and be present in this country. The Executive claims the power to ignore these statutes and unilaterally deem lawful the presence of any unauthorized alien it chooses not to remove.”

“The President himself described DAPA as ‘an action to change the law,’” Texas notes in its petition.

“In reality, of course, DAPA is a crucial change in the Nation’s immigration law and policy—and that is precisely why it could be created only by Congress, rather than unilaterally imposed by the Executive,” said Texas.

Here is an excerpt from the brief that 43 senators presented to the Supreme Court today:

There is little doubt that the Executive adopted the Deferred Action for Parents of Americans and Lawful Permanent Residents (“DAPA”) program as part of an explicit effort to circumvent the legislative process. Prior to issuing DAPA, the President had repeatedly “push[ed] for legislation” to alter the immigration laws by, among other things, granting legal status to the vast majority of the 11 million aliens illegally present in the United States. The President ultimately proved unsuccessful, however, in persuading Congress to enact any of those proposals.

In response, just two weeks after American voters elected a majority of Republicans in both the House and the Senate in the November 2014 election, the President abandoned his effort to persuade the voters’ elected representatives of the wisdom of his position, and instead chose to implement his policy preferences by the extra-constitutional assertion of a unilateral executive power. With millions of illegal aliens not permitted to remain in this country, work in this country, or receive government benefits pursuant to federal law, the Executive decided to provide such privileges to them anyway through administrative fiat.

In defending the authority to implement DAPA, the Executive points neither to the Constitution, nor to any express grant of statutory authority, but relies upon ‘prosecutorial discretion.’ See, e.g., U.S. Br. At 42–47. Yet this case is not about prosecutorial priorities or the use of the Department of Homeland Security’s (“DHS”) finite resources. This case is about the Executive’s unilateral determination, not simply to leave individual aliens alone, but to confer upon a broad class of illegal aliens the authorization to work and to receive federal benefits that the laws of this country nowhere provide. It is one thing for the Executive to prioritize the deportation of certain aliens, but wholly another to declare affirmatively that over four million illegal aliens may remain in the United States “lawfully” and receive benefits to which the laws do not otherwise entitle them.


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